Family Law FAQs

Clients and other people who are interested in divorce and family law often ask similar questions about such issues as maintenance, termination and modification of maintenance, removal of children from Illinois, child support in divorce, enforcement of child support and maintenance, discovery of assets and distribution of property. Below are some of the most frequently asked questions on these matrimonial law topics.

Maintenance

What is maintenance?

Maintenance is what was formerly called alimony. It is a spouse’s right of support from the other spouse and is different from child support.

How does a court determine if maintenance is appropriate?

Some of the major considerations are:

The length of the marriage

The disparity in earnings of the parties

Whether the parties have children and whether one spouse has given up their career opportunities due to the marriage

The age and health of the parties

Each party’s ability to acquire income and assets in the future

The standard of living established during the marriage.

Are there tax consequences to maintenance payments?

Generally the person receiving the maintenance pays taxes on the payments and the person paying the maintenance is able to deduct the payments.

I have heard the term “permanent maintenance.” When does that occur?

Courts may award permanent maintenance for marriages of 20 years or more subject to the consideration of the factors that are to be generally considered in awarding maintenance and limited to the extent that it will likely not continue once the payer has retired.

Termination and Modification of Maintenance

Does maintenance terminate if I am living with someone?

In most cases in Illinois maintenance terminates if someone lives with another person on a “resident, continuing, conjugal basis” which translates to a relationship similar to a marriage. The courts will take into consideration if your relationship is like a marriage (sharing income, sharing holidays and vacations) or more similar to a room mate arrangement.

Does maintenance automatically terminate or do I need to go to court?

If you are paying maintenance to a former spouse who is living with another person on a conjugal basis, it is best to go to court to terminate your support obligation. However, you must be able to prove that the conjugal cohabitation exists.

Are there cases where maintenance does not terminate due to living arrangements?

If both parties agree, the marital settlement agreement can provide that maintenance will not terminate in the event of a “conjugal cohabitation.”

Removal of Children from Illinois

I have sole custody of my children and would like to move to another state. Do I need a court order?

Illinois law does require a custodial parent to obtain a court order if they wish to move their children to another state.

When deciding on a removal petition, which is more important to the judge — the parenting schedule set out in the divorce decree or the actual time the non-custody custodial parent spends with the children?

The court will consider the time the non-custodial parent actual spends with the children and will take into consideration the time that parent was permitted to see the children pursuant to the Joint Parenting Agreement.

I was never married to my child’s father. Do I still need a court order to allow me to remove my child from Illinois?

Yes. In 2003 Illinois passed a law that provided that the provisions of Section 609 apply to the determination of custody under the Illinois Parentage Act.

Child Support in Divorce

Does Illinois have minimum child support guidelines?

Yes. Under most circumstances these guidelines are followed:

Number of Children – Percentage of Supporting Party’s Net Income

1 – 20% 2 – 28% 3 – 32% 4 – 40% 5 – 45% 6 or more – 50%

What is the difference between gross income and net income?

Gross income is total income (prior to any deductions like taxes, etc.) Net income is the income after payment of deductions allowed by the child support guidelines, as noted in Question 3, below.

What deductions do the child support guidelines allow?

Federal and state income taxes (properly calculated), mandatory retirement contributions, union dues, health care insurance premiums, previous order of support paid under a court order, and a final deduction for “expenditures for payment of debts that represent reasonable and necessary expenses for production of income, medical expenses, expenditures necessary to preserve life or health, reasonable expenditures for the benefits of the child and the other parent, exclusive of gifts.”

Can my 401(k) contribution be deducted?

No, unless the contribution is a mandatory condition of your employment.

Who pays for daycare expenses?

Normally daycare expenses necessary for the custodial parent’s employment are divided equally between the parties.

What about medical expenses for the children?

The non-custodial parent is normally required to maintain health insurance for the children unless the custodial’s parent has better insurance coverage (in which case the non-custodial parent may be required to contribute to the insurance premium). Expenses not covered by insurance are normally divided between the parties in some proportion. If one parent has a significantly higher income than the other parent, the parent with the higher income could be required to pay a higher percentage of the unpaid expenses.

Who pays for extracurricular expenses for the children?

Courts are divided on this. In most negotiated agreements, these expenses are divided between the parents in varying proportions often consistent with the parents’ incomes or cash flow. There are often limitations placed such as requiring the agreement of the parties before a parent is responsible for paying for a particular activity, limiting the number of activities the children will participate in, or limiting the total amount to be paid per parent in a given season or year.

Can I avoid paying child support if I have equally time with the children?

The law provides that the nonresidential parent is required to pay child support and even with an equal division of time between the parents, a designated residential parent is almost always required. With truly equal parenting time and equivalent incomes, courts may deviate from the guidelines to some extent. If the child support amount is negotiated, the courts are inclined to accept the agreement if the judge is satisfied that the parties can adequately support themselves and the children with a deviation. If the judge decides the support issue, it will most likely be strictly compliant with the statutory guidelines.

Enforcement of Child Support and Maintenance

Where can I find information about the State Disbursement Unit?

Their Web site is www.ilsdu.com, where you can find answers to frequently asked questions, view payments or disbursements made within the last 30 days, print forms, etc.

Does that State Disbursement Unit have the ability to transfer support payments electronically?

Yes, you can obtain the form online at their Web site.

Are child support payments required to be made through SDU?

No, the parties can agree to have the payments made in another manner.

Discovery of Assets

What documents should I bring to my first meeting with my lawyer?

If is not necessary to bring any documents to the first meeting. However, if available it is helpful to bring tax returns for the past two years, recent pay stubs and the most recent statement for any pension plans.

What if I don’t have access to my financial information?

The law in Illinois provides for the disclosure of assets or what is referred to as discovery. The usual tools in discovery are a notice to produce documents and interrogatories. A notice to produce documents requires a party to produce certain documents that are in his or her possession. Interrogatories are questions a party is required to answer.

What is a subpoena?

A subpoena is similar to a notice to produce documents in that it requires the production of documents; however, a subpoena is directed to a third party and not a spouse.

Distribution of Property

Is there a presumption in Illinois divorce law that all property is divided equally in the divorce?

Illinois divorce law requires that property is to be divided equitably — which does not necessarily mean equally. There are a number of factors courts consider when dividing marital property.

If all the property purchased during our marriage was placed in my wife’s name, will this be advantageous to her?

No. If property was acquired during the marriage there is a presumption that the property is marital property. Some exceptions to this rule:

property acquired by gift or through inheritance

property acquired in exchange for property acquired before the marriage or in exchange for property acquired through gift or inheritance

How can I make certain that gifts and inheritances will remain my non-marital property?

The best way is to keep the property in your name only and not put it into any form of joint ownership and to never transfer any marital money into those accounts.

Other Frequently Asked Questions

Is It Important to Be the First Party to File for Divorce?

As a rule, the first party to file for a divorce has no advantage or disadvantage in the eyes of the law. The ultimate division of marital property as well as child custody issues have nothing to do with which spouse files first for a divorce. The first filer may benefit if the two spouses currently live in different counties, however. It may be more convenient to appear in court in the county where a party resides than to travel to another county. Filing fees, however, are somewhat higher for the first filer.

Should I Date During Divorce Proceedings?

It has to be said: What you can do and what you should do may not be the same thing. Courts divide marital property without considering infidelity, adultery, or other allegations of marital misconduct. Thus, parties are free to date during the divorce process without fearing a backlash from the court. On the other hand, having a girlfriend or boyfriend before a marriage dissolution may complicate the divorce. The presence of a girlfriend or boyfriend may affect your spouse’s emotions and thus decrease your chances of an amicable, quick and inexpensive divorce.

Can I Make Oral Agreements to Adjust Divorce or Custody Arrangements?

The problem with verbal agreements is that, while they may be legally binding, they also may be extremely difficult and expensive to enforce. If you wish to adjust the weekends or specific times of visitation, you should bring your concern to an attorney’s attention and certainly have all sides put any new arrangement in writing.

What, If Anything, Can I Communicate about My Divorce Electronically?

Although certain electronic communications with your attorney may be privileged, do not assume anything else you say or write will stay out of the courtroom. That rings true especially for voice messages, text messages, e-mails, chat messages, and comments posted on any kind of social networking site, such as Facebook or Google+. If you are experiencing negative emotions and feel tempted to lash out verbally — especially over a custody matter or anything else that affects a child — remember that your message may become discoverable. One day it could be played or read in the courtroom, where it could hurt your your negotiations, your case, or your other interests.

What are the Grounds for Marriage Dissolution?

Extensive litigation contesting the grounds for a divorce was common many decades ago in Illinois. Nowadays, grounds are rarely contested since the state recognizes no-fault divorce, although not in its pure form. Practically speaking, nearly all divorces in Illinois allege fault-based grounds of mental cruelty or the no-fault alternative of irreconcilable differences.

“Irreconcilable differences” requires a separation of two years, although the period can be reduced to six months if the spouses sign a waiver. The odds of success in contesting the fault-based grounds of “mental cruelty” are not great, and judges typically view such litigation as a waste of time. Nearly any marital dispute that reaches court does so only after extensive marital disagreement that causes the complaining spouse to feel upset enough to conclude the marriage is irrevocably broken.

In other words, if the parties want a divorce, no one should be unduly concerned when the grounds of mental cruelty are raised. Marital misconduct has no bearing on property division or the levels of child support and maintenance. It’s also irrelevant to custody unless the alleged cruelty affects the children or their care.

For more answers to frequently asked questions relating to divorce law and family law, please view the topics listed in the Divorce Magazine Newsletters heading.